The state Supreme Court
yesterday declined to review a Court of Appeal ruling striking down a school
district’s restrictive transfer policy as a violation of Proposition 209.

No justice voted to
review the May 31 ruling of the Fourth District’s Div. Three in Crawford v. Huntington BeachUnionHigh School Dist., 98 Cal.App.4th 1275.

The panel held that the
policy, which restricted a student’s ability to transfer into a school where
his or her racial group was already over-represented, or out of a school where
he or she was in a racial minority, violates the 1996 initiative outlawing
racial preferences in public education, employment, or contracting.

The district put the
policy on hold after the Court of Appeal ruling, its attorney, David C. Larsen
of Rutan & Tucker, told the MetNews. Students who wish to transfer into or
out of WestminsterHigh School, the only school
affected by the policy, may currently do so regardless of race, he said.

Larsen declined to
comment on whether the district would ask the U.S. Supreme Court to hear the
case, based on the district’s argument that the policy is necessary to
implement Fourteenth Amendment equal protection rights.

The Huntington BeachUnionHighSchool District adopted its policy
under Education Code Sec. 35160.5.

That statute provides
that students have the right to “open enrollment” at the schools of their
choice within the district in which they live, subject to certain exceptions.
One exception is that districts “retain the authority to maintain appropriate
racial and ethnic balances among their respective schools at the school
districts’ discretion or as specified in applicable court-ordered or voluntary
desegregation plans.”

‘Racially Isolated’

The Huntington Beach district applied a
restrictive policy to Westminster because it is the only
“racially isolated” school among the six in the district. Under the rule,
Asians—about 45 percent of the student body-and Hispanics—about 30
percent-living outside the Westminster attendance zone could not transfer in unless an
equal number of Asians or Hispanics transferred out.

Similarly, “Whites”—less
than one-sixth of the student population—had to attend Westminster if they lived in its
zone, unless an equal number of whites transferred in.

The policy was challenged
in September 1999 by Donald Bruce Crawford, who brought a taxpayer suit in 1999
with representation by the Pacific Legal Foundation.

Orange Superior Court
Commissioner Sheila B. Fell ruled that the policy was acceptable because it
“promotes a non-segregated public education.” The state Supreme Court ruling in
HiVoltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537,
striking down a minority outreach program for city contractors as inconsistent
with the initiative, was found by the commissioner to be inapplicable.

Policy Unlawful

But the appellate panel,
in an opinion by Presiding Justice David K. Sills, said the policy was
unlawful. Because some students would be allowed to attend the school of their
choice, while others would not, and because the distinction between the two
groups is racial, the policy violates Proposition 209, Sills reasoned.

While the goal of the
policy, desegregation, is a legitimate one, Sills explained, the voters clearly
intended that such programs be subject to scrutiny under Proposition 209.

Sills rejected the
contention that the policy implements the Equal Protection Clause of the
Fourteenth Amendment and thus takes precedence over Proposition 209.

“While there can be no
question the United States constitution prohibits a school district from acting
to segregate schools, there is no federal constitutional mandate necessitating
the implementation of a proactive program of integration,” he wrote.

Sills added that the
court was not suggesting that schools are powerless to implement “integration
plans.” A school district may, he advised, encourage integrated student bodies
through such devices as magnet schools—which offer special programs in order to
entice enrollees from a wide geographic area—or an unweighted random lottery
for students wishing to attend schools outside their attendance zones.

In other actions taken
at yesterday’s conference, the court:

•Agreed to revisit the
question of what showing a custodial parent must make in order to justify
moving to a place distant from the other parent’s residence. A First District
Court of Appeal panel, in an unpublished opinion, reversed an order requiring a
custodial parent to give up primary physical custody if she went ahead with a
planned move out of the state. The case is In re Marriage of Lamusga,
A096012.

•Elected to review a
decision by Div. One of this district’s Court of Appeal in an insurance
coverage case. The court held in Rosen v. State Farm General Ins. Co.,
98 Cal.App.4th 1322, that a homeowner’s policy that expressly defines the term
“collapse” as “actually fallen down or fallen into pieces” provides coverage
for imminent collapse.

•Agreed to review an
unpublished Third District Court of Appeal decision dealing with the adequacy
of a claim under the Governmental Tort Claims Act. The court in Stockett v.
Association of California Water Agencies, C035330, threw out a $4.5 million
wrongful termination judgment on the ground that the plaintiff’s tort claim
failed to place the employer on notice as to what public policies it allegedly
violated by ending the plaintiff’s employment.

•Granted review in People
v. Celis, 98 Cal.App.4th 621, in which the Fourth District’s Div. One held
that police acted reasonably in detaining a suspect outside his home based on
observations that lead them to suspect that criminal activity was ongoing.

•Granted review in People
v. Garcia, 99 Cal.App.4th 38, in which the Third District held that a
defendant convicted of a misdemeanor offense of stealing a drug, which he
immediately consumed, was eligible for a treatment program under Proposition
36.